Judge Kuhl’s record on women’s rights, including the right to privacy, bodily integrity, and reproductive freedom, is disturbing. Far from demonstrating a “commitment to the progress made on . . . women’s rights,” Kuhl has endeavored to turn back the clock on reproductive freedom, specifically urging the Supreme Court to overrule Roe v. Wade. Her record on other aspects of women’s rights is also troubling, as detailed below.
When Kuhl served as Deputy Assistant Attorney General, she specifically urged that the Department of Justice seek to have the Supreme Court overturn Roe v. Wade. In connection with Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), Kuhl successfully advocated within the Department in favor of filing an amicus curiae brief — which she then co-authored — asking the Court to overrule Roe v. Wade. At issue in the case was the constitutionality of six provisions of the Pennsylvania Abortion Control Act, which placed a number of obstacles in the way of women attempting to exercise their right to choose an abortion and also required that doctors performing abortions submit detailed reports about their patients, including private, non-medical information. The United States Court of Appeals for the Third Circuit held these provisions to be unconstitutional on their face. 8
The amicus brief that Kuhl co-authored defended the challenged provisions of the Pennsylvania law and asked the Supreme Court to reverse the Court of Appeals’ ruling. But it then went even further and expressly urged the Supreme Court to overrule Roe v. Wade, 410 U.S. 113 (1973), which the Court had specifically reaffirmed just two years earlier, in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 420, 426-431 (1983). The brief contended that
the textual, historical and doctrinal basis of that decision is so far flawed that this Court should overrule it and return the law to the condition in which it was before that case was decided.
Brief for the United States as Amicus Curiae in Support of Appellants, Thornburgh v. American College of Obstetricians and Gynecologists, at 10 (July 15, 1985) (LEXIS pagination). The brief went on:
There is no explicit textual warrant in the Constitution for a right to an abortion. It is true, of course, that words, and certainly the words of general constitutional provisions, do not interpret themselves. That being said, the further afield interpretation travels from its point of departure in the text, the greater the danger that constitutional adjudication will be like a picnic to which the framers bring the words and the judges the meaning.
Id. (emphasis added).
Significantly, the brief also asserted that the important principle of stare decisis should not stop the Court from overturning Roe. The brief claimed that “[s]tare decisis is a principle of stability. A decision as flawed as we believe Roe v. Wade to be becomes a focus of instability, and thus is less aptly sheltered by that doctrine from criticism and abandonment.” Id. at 10 (emphasis added).
It is important in evaluating Kuhl’s record to recognize that in this instance and others during her service in the Reagan Administration she was not merely a lawyer representing a client. She was a political appointee within the Department of Justice in a position to influence the legal position that the Reagan Administration took, and she successfully exerted that influence. The United States was not a party in Thornburgh; it need not have filed a brief in the case at all, let alone have asked the Court to overturn Roe in order to uphold the Pennsylvania statute. As Charles Fried later recounted, he received various memoranda from within the Department of Justice as to whether the government should file a brief in the case. 9 According to Fried, among the recommendations he received, “[t]he most aggressive memo came from my friends Richard Willard and Carolyn Kuhl in Civil, who recommended that we urge outright reversal of Roe.” 10
The Court in Thornburgh rebuffed the effort by Kuhl and her colleagues to turn back the clock on women’s reproductive freedom. Not only did the Court uphold the appellate ruling striking down the Pennsylvania anti-choice provisions, but it also once again “reaffirm[ed] the general principles laid down in Roe. . . .” 476 U.S. at 759. According to the Court, “[t]he States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. . . . Close analysis of [the Pennsylvania provisions] shows that they wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make.” Id. 11
Thornburgh was not the only important case concerning reproductive freedom in which Kuhl was involved. As Deputy Assistant Attorney General, Kuhl defended regulations issued by the Reagan Administration’s Department of Health and Human Services requiring family planning clinics that received federal Title X funds to notify parents when they prescribed contraceptive drugs or devices to minors age 17 or under. See Planned Parenthood Federation of America, Inc. v. Heckler, 712 F.2d 650 (D.C. Cir. 1983). The regulations had been challenged by family planning groups and sharply criticized by others as well. For example, Rep. Henry Waxman, chair of a House subcommittee with jurisdiction over family planning issues, stated, “The administration deliberately misread the statute to carry on its long war on family planning.” Betty Anne Williams, Associated Press (July 8, 1983, A.M. cycle).
In her oral argument in the Court of Appeals in Heckler, Kuhl had attempted to minimize any concern that a requirement of parental notification would deter sexually active teenagers from seeking contraceptive services. When asked by Judge Harry Edwards “‘Do you honestly suggest that . . . the thought of their parents being told won’t discourage teenagers from seeking services?’”, Kuhl replied, “‘There is no hard scientific evidence . . . on how many will be discouraged from clinics or will become pregnant.’” Barbara Rosewicz, Washington News, U.P.I. (May 10, 1983, P.M. Cycle). The Court of Appeals rejected Kuhl’s arguments and struck down the regulations, holding that the regulations were “fundamentally inconsistent” with the intent of Congress and beyond the Department’s authority. 712 F.2d at 651. Among other things, the court held that the regulations were inconsistent with clearly expressed congressional policy that family planning clinics protect doctor-patient confidentiality, particularly the confidentiality of adolescents. As the court explained, Congress had specifically recognized that “confidentiality was essential to attract adolescents to the Title X clinics,” and that without assurances of confidentiality, “one of the primary purposes of Title X — to make family planning services readily available to teenagers — would be severely undermined.” 712 F.2d at 660.
Kuhl was also involved in a troubling effort to limit the reach of sexual harassment doctrine. As Deputy Solicitor General, Kuhl co-authored with Assistant Attorney General William Bradford Reynolds, Solicitor General Charles Fried and others an amicus curiae brief in the landmark sexual harassment case of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), weighing in to support the employer and asserting a position on sexual harassment which, had it been adopted by the Court, would have made it more difficult for women to prove sexual harassment in the workplace.
Vinson was a Title VII sex discrimination lawsuit brought by a female bank employee, Mechelle Vinson, who contended that her supervisor had made repeated demands on her for sex, and that she had eventually agreed to his demands out of a fear of losing her job. She also explained that the supervisor had “fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.” 471 U.S. at 60. The supervisor denied Ms. Vinson’s allegations.
The district court ruled against Ms. Vinson, and while “not resolv[ing] the conflicting testimony about the existence of a sexual relationship” between Ms. Vinson and her supervisor, held that if they had engaged in such a relationship, it “was a voluntary one having nothing to do with [Ms. Vinson’s] continued employment. . . .” 477 U.S. at 61. The Court of Appeals reversed, holding that unlawful sexual harassment need not be of the “quid pro quo” variety, in which sexual favors are demanded in order to keep a job, but can also take the form of a hostile working environment. Since the court believed that the district court had not considered this type of sexual harassment, it ruled that the case should be sent back to the district court to consider whether such a violation of Title VII had occurred. The bank and supervisor appealed to the Supreme Court.
Kuhl’s amicus curiae brief in the case on behalf of the United States and the EEOC urged the Supreme Court to overturn the Court of Appeals’ decision and rule against Ms. Vinson. Although the brief agreed that proof of a sexually hostile work environment would be sufficient to demonstrate a violation of Title VII, it claimed that Ms. Vinson had not proven the existence of such an environment: “While unwelcome sexual advances may create a hostile work environment, consensual sexual relationships do not provide a basis for Title VII liability.” Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae, Meritor Savings Bank v. Vinson, at 3 (Dec. 11, 1985)(LEXIS pagination).
According to the brief, the district court’s findings had shown “appropriate sensitivity to the need to ensure that sexual harassment charges do not become a tool by which one party to a consensual sexual relationship may punish the other.” Id. at 7. Kuhl’s brief further argued that “special deference” should be given to the district court’s conclusions as to the evidence and that “the court of appeals appears to have endorsed a view of sexual harassment that would allow Title VII actions to be based on purely personal and consensual relationships between co-workers.” Id. Significantly, however, the man in question was not Ms. Vinson’s “co-worker” but her supervisor — an assistant Vice President of the bank and manager of the branch where she worked. Kuhl’s brief did not address the disparity in power between a male supervisor and a female employee, a disparity that can bear significantly on the “consensual” or “voluntary” nature of a sexual relationship between the two. In essence, the brief took the position that if a woman eventually gives in to unwelcome sexual advances by a supervisor, it would be extremely difficult for her to bring a successful claim for sexual harassment.
The Supreme Court ruled unanimously in favor of Ms. Vinson. In an opinion by then-Justice William Rehnquist, the Court rejected as incorrect the district court’s focus on the “voluntariness” of the alleged sexual conduct, a focus on which Kuhl’s brief had also turned. According to Justice Rehnquist, “the fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’. . . [T]he District Court in this case erroneously focused on the ‘voluntariness’ of [Ms. Vinson’s] participation in the claimed sexual episodes. The correct inquiry is whether [Ms. Vinson] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” 477 U.S. at 68 (emphasis added). Had Kuhl’s constricted view of what constitutes hostile environment sexual harassment prevailed, it would be much more difficult for women to prove the existence of such unlawful working conditions.